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2016 DIGILAW 1406 (GUJ)

Jagdishsinh v. State of Gujarat

2016-07-20

BIREN VAISHNAV, HARSHA DEVANI

body2016
JUDGMENT : Biren Vaishnav, J. 1. This appeal under section 374 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of conviction dated 20.10.2014 passed by the Sessions Judge, Jamnagar, in Sessions Case No. 79 of 2012. By the aforesaid judgment, the appellant-accused has been convicted of offences punishable under sections 302, 201 of the Indian Penal Code and section 135(1) of the Bombay Police Act. The appellant has been acquitted of the offence under section 66(1)(B) of the Bombay Prohibition Act. 2. The case of the prosecution is as under: 2.1. The complainant, Jentilal Premjibhai Tank, father of the deceased Rajesh Jentilal Tank, filed an FIR before the Panchkoshi Police Station at Jamnagar on 26/5/2012 inter-alia stating that he is a resident of Village Jamvanthali. The complainant further stated that he had three sons, the eldest one being Vinubhai who stays at Billimora, the second son Suresh, a teacher staying at Village Balugar. That he (the complainant) owns and possesses 40 bighas of agricultural land on the road to Rozia Village and he cultivates the land. Rajesh, the younger son stays with him. The agricultural land had seven kyarees/rows of "gadab" which was fodder for the cattle. Tools used for the purposes of agriculture were also kept on the land. It was further the case of the complainant, in the complaint that in order to prevent pigs and other animals from grazing, and as the agricultural tools were on the field, it was necessary to keep a watch on the field at night. That his son Rajesh and he would alternatively keep a watch on the fields at night. On 25/5/2012, Rajesh, after his dinner, at around 8:00 p.m. had left on his bicycle for the field for keeping a watch that night. The following day at 6:00 in the morning he, (the complainant) went to the field and found Rajesh sleeping on a cot. According to the narration in the complaint, when the complainant, after sometime, went to wake-up Rajesh, he found Rajesh lying on the cot with his face covered in blood, his right ear cut from the centre and had injuries sustained by a blow. The complainant, finding Rajesh to be dead, went to the village and informed his cousin, Hasmukhlal Khimji Tank and his son Suresh at Mota Balugar and all of them returned to the farm. The complainant, finding Rajesh to be dead, went to the village and informed his cousin, Hasmukhlal Khimji Tank and his son Suresh at Mota Balugar and all of them returned to the farm. Suresh informed the police at Jamnagar. A complaint was lodged at the Panchkoshi Police Station, Jamnagar of the death of Rajesh caused by an unidentified person, by inflicting injuries by a sharp-weapon on the right ear and head. The police registered the FIR as C.R. No. I-69 of 2012 and the investigation was handed over to Police Sub-Inspector Shri Solanki. The Investigating Officer took charge of the investigation and drew the inquest panchnama as well panchnama of the scene of offence, recovered muddamal articles, arrested the accused, carried out an identification parade, took statements of witnesses, sent muddamal for examination to the FSL and filed a chargesheet before the Judicial Magistrate. 2.2. As the case was exclusively triable by the Sessions Court, the Magistrate, vide his order dated 4/09/2012, in exercise of powers under section 209 of the Code of Criminal Procedure (for short "the Code") committed the case to the Sessions Court, Jamnagar. 2.3. The trial court framed the charge at Exh. 5 for offences under sections 302, 201 of the Indian Penal Code (for short "IPC"), section 66(1)(B) of the Bombay Prohibition Act (for short "B.P. Act") and section 135(1) of the Gujarat Police Act. The accused pleaded not guilty and sought a trial. Statement under section 313 of the Code was recorded. During the course of trial, the prosecution examined, in all, 22 witnesses and produced documentary evidences on record as follows: Sr. No. Name of the witnesses Exh.No. 1. Panch Bharatsinh Prabhatsinh Sarvaiya Exh.9 2. Panch Yogesh Bhupatbhai Tankariya Exh.10 3. Panch Aswin Meghjibhai Parmar Exh.13 4. Panch Rajeshbhai Pragjibhai Chavda Exh.14 5. Panch Rameshbhai Babulal Nanda Exh.15 6. Panch Vijay Chandulalj Chandra Exh.16 7. Panch Pravinbhai Vashrambhai Nanda Exh.17 8. Panch Haji Mohanbhai Dhabi Exh.18 9. Panch Firoz Ibrahim Exh.19 10. Witness Rajesh Nanjibhai Tank Exh.23 11. Witness Hitendrasinh bachubha Exh.24 12. Witnessw Sukhdev Mohan Exh.25 13. Witness Ashok Mohanbhai Exh.26 14. Witness Bhavin Rameshbhai Exh.28 15. Panch Suresh Prafulpuri Goswami Exh.31 16. Complainant – Jentilal Premjibhai Tank Exh.35 17. Witness Satyendrasinh Shriramshankar Tomar Exh.36 18. Dr. Ketanbhai Prakashbhai Balas Exh.38 19. Dr. Priti Premchand Vora Exh.43 20. Witness Hathabhai Khengarbhai Exh.48 21. Rajesh Rameshchandra Solanki (PSI) Exh.68 22. Witnessw Sukhdev Mohan Exh.25 13. Witness Ashok Mohanbhai Exh.26 14. Witness Bhavin Rameshbhai Exh.28 15. Panch Suresh Prafulpuri Goswami Exh.31 16. Complainant – Jentilal Premjibhai Tank Exh.35 17. Witness Satyendrasinh Shriramshankar Tomar Exh.36 18. Dr. Ketanbhai Prakashbhai Balas Exh.38 19. Dr. Priti Premchand Vora Exh.43 20. Witness Hathabhai Khengarbhai Exh.48 21. Rajesh Rameshchandra Solanki (PSI) Exh.68 22. Dhaval Dattaray Simpi (PSI) Exh.89 Sr. No. List of the documents Exh. No. 1. Inquest Panchnama of the deceassed 11 2. Yadi of T.I. Parade send to Executive Magistrate 29 3. Panchnama of T.I. Parade 32 4. P.M.Note 39 5. Short Report regarding details of the death of the deceased 40 6. Police Yadi to conduct post mortem of the deceased 41 7. Marnotar Form 42 8. Yadi send to the Medical Officer for taking the blood sample of the accused 44 9. Blood Collection Form 45 10. Yadi for physical verification the body of the accused 46 11. Certificate of physical verification the accused 47 12. Yadi regarding the map of the scene of offence 49 13. Map of the scene of offence 50 14. Copy of the notification of prohibition of the arms 51 15. Copy of the Letter written to the General Manager, Telecom Department, Ahmedabad for obtaining the call details 55 16. Forwarding letter and the call details of the mobile 56, 57 17. Evidence Certificate, Sub-Divisional Manager, Ahmedabad 58 18. Copy regarding the details while obtaining sim card of BSNL and the attested true copy of the form and the photo, copy of election card, ration card. 59 19. Authority letter of BSNL 60 20. Attested copy of Power of Attorney 63 21. Certificate issued under Section 65-B(4)(c) of the Evidence Act. 64 22. Original copy of the call details 65 23. The original documents given at the time of the obtaining sim card. 66 24. Original Complaint 69 25. Copy of Vardhi No.122/12 70 26. Yadi for registration of the complaint 71 27. Message sent for registration of complaint 72 28. Panchnama of the scene of offence 73 29. Panchnama of the recovery of mobile of the deceased 74 30. Panchnama of the arrest of the accused 75 31. Panchnama of the recovery of the clothes of the accused 76 32. Discovery Panchnama 77 33. Report of FSL, Jamnagar 78 34. Letter written to the FSL, Rajkot regarding muddamal 79 35. Panchnama of the scene of offence 73 29. Panchnama of the recovery of mobile of the deceased 74 30. Panchnama of the arrest of the accused 75 31. Panchnama of the recovery of the clothes of the accused 76 32. Discovery Panchnama 77 33. Report of FSL, Jamnagar 78 34. Letter written to the FSL, Rajkot regarding muddamal 79 35. Receipt of muddamal by FSL, Rajkot 80 36. Forwarding letter and report of FSL, Rajkot 81 37. Yadi regarding obtaining the mobile location 82 to 87 38. Yadi regarding the arrest of accused 87 39. Certificate given by FSL, Gandhinagar for examination of alcohol 88 40. Copy of the station diary 90 The trial court, on appreciation of evidence on record, found that the prosecution had established the charge under sections 302, 201, IPC and section 135(1) of the Gujarat Police Act, however, the trial court acquitted the appellant for the offence under section 66(1)(B) of the B.P. Act. 3. Learned Advocate Mr. Ashish Dagli for the appellant submits there are no eyewitnesses to the incident and hence, the entire case of the prosecution rests on circumstantial evidence. He further submits that the prosecution has not based its case on the theory of last seen together. According to Mr. Dagli, the appellant is falsely implicated and has no concern or connection with the incident. 4. According to Mr. Dagli, the entire case of the prosecution is built on the charge that the appellant consumed alcohol and thereafter committed the murder of the deceased, took away the mobile, sold it to one witness namely Satyendrasinh, from whom the mobile has been found. According to Mr. Dagli, the only evidence led by the prosecution in the entire case is that, since the mobile, which was with the deceased on the date of the incident, was recovered from Satyendrasinh, which according to this witness was sold to him by the accused and as he identified the appellant, in the test identification parade, as the seller of the mobile, the prosecution, based on such circumstantial evidence, has brought forth a case of the appellant having committed the murder of deceased Rajesh. 5. Mr. 5. Mr. Dagli submits that merely because Satyendrasinh, in his testimony states that he has purchased the mobile phone from the present appellant, and further as he identifies the appellant, no inference can be drawn, that it is the appellant who has committed the offence under section 302, IPC, and such an inference drawn by the trial court is seriously flawed. 6. Mr. Dagli further submits that no reliance can be placed upon the evidence of Mamlatdar, Bhavin Rameshbhai, Exh. 28, who carried out the test identification parade on 7.6.2012. According to Mr. Dagli, the entire exercise of carrying out the test identification parade is an exercise in futility and has no evidential value in the eyes of law, as it has come on record, in the cross-examination of Satyendrasinh Shriramshankar Tomar P.W. 17, Exh. 36 that he was called to Jamnagar for recording his statements and was kept at the Jamnagar Police Station for three to four days and during such time even the accused was with them. The attention of this Court is also invited by Shri Dagli to the panchnama Exh. 32, which has been proved through panch witness Suresh Prafulpuri Goswami P.W. 15, Exh. 31, wherein it is categorically recorded that the accused, during the test identification parade, when suggested, to change clothes and switch places, refused to do so, on the ground that he was in the company of Satyendrasinh Tomar and Jitendrasinh Tomar, for the last three weeks, (or days, as the case may be) at the police station and was known to them. 7. In order to fortify his submission that the exercise of carrying out the test identification parade was an exercise in futility, Mr. Dagli, has relied on the judgment of the Supreme Court in the case of Vijayan Vs. State of Kerala, (1999) 3 SCC 54 . Mr. Dagli has pressed into service this judgment to contend that, once it was evident from the cross examination of Satyendrasinh and from the panchnama Exh. 32, that both the accused-appellant and Satyendrasinh were together in the custody, for three to four days, and were therefore in a position to know each other, the test identification parade was nothing but a farce. 8. Mr. Dagli has further relied on the decision in the case of R. Shaji Vs. State of Kerala (2013) 14 SCC 266 . 32, that both the accused-appellant and Satyendrasinh were together in the custody, for three to four days, and were therefore in a position to know each other, the test identification parade was nothing but a farce. 8. Mr. Dagli has further relied on the decision in the case of R. Shaji Vs. State of Kerala (2013) 14 SCC 266 . According to Shri Dagli, as held by the Supreme Court in this judgment, the conducting of a test identification parade was meaningless when the witness was known to the accused. Mr. Dagli therefore submits that it cannot be said that circumstantial evidence was of such nature from which an inference can be drawn as, the circumstances taken cumulatively do not form a chain so complete that there is no escape from the conclusion that in all probability the crime was committed by the accused. In support of this submission Mr. Dagli has relied on the decision in the case of State of Goa Vs. Sanjay Thakran and Another (2007) 3 SCC 755 . Mr. Dagli, relying on this judgment, contends that when the case rests upon circumstantial evidence, the circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established and the circumstances taken cumulatively should form a chain so complete that it is the accused who has committed the crime. 9. Mr. Dagli further contends that merely because, (i) the mobile has been recovered from Satyendrasinh and such recovery has been proved through a recovery panchnama Exh. 74, through the deposition of Ashwin Meghji Parmar PW 3, and (ii) a discovery panchnama Exh. 77 is drawn wherein cash and PAN card belonging to the deceased and the ration card belonging to the complainant have been discovered from the scene of the offence, at the instance of the accused, and sought to be proved through the testimony of the Investigating Officer, though the panchas have turned hostile, such evidence cannot be used to draw an hypothesis of the guilt of the accused, when no corroborative evidence has been brought forth to complete the chain to link the accused with the offence so committed. Reliance has been placed by Mr. Dagli on the decision in the case of Mer Vaja Meraman Vs. Reliance has been placed by Mr. Dagli on the decision in the case of Mer Vaja Meraman Vs. State of Gujarat, 1988 (2) GLR 1057 , to contend that the recovery panchnama cannot be said to have been proved It only discloses the fact of recovery of the mobile from Satyendrasinh. Similarly the discovery panchnama cannot be pressed into service as the witnesses have not supported the panchnama and even the Investigating Officer in his testimony has only admitted the existence of the panchnamas. Therefore, in absence of any other substantive piece of evidence, panchnamas cannot lead one to conclude and form a link to implicate the accused. Reliance is also placed by Mr. Dagli in the decision of Patel Manabhai Mavjibhai Vs. State of Gujarat, 2013 (1) GLH 40 , to contend that mere recovery of an object at the instance of the accused is a relevant fact where there is other evidence to establish that the object recovered has any connection with the accused and the offence with which he is charged. In the submission of Mr. Dagli merely because the mobile belonging to the accused is recovered from Satyendrasinh, as sought to be proved from the recovery panchnama, the testimonies of Satyendrasinh and Bhavin Ramesh and the Investigating Officer cannot form a substantive piece of evidence to complete the chain and cannot be held to be sufficient to convict the accused of an offence of murder. In the submission of Shri Dagli facts do not establish a hypothesis of guilt of the accused and therefore the conviction of the appellant ought to be set aside. 10. Mr. Dagli draws attention of this Court to a judgment rendered by a Division Bench of this Court in the case of Gopal @ Gopi Harmanbhai Chauhan Vs. State of Gujarat (Criminal Appeal No.1502 of 2009 decided on 31/7/2014). Mr. Dagli relies upon paragraph 32 of the judgment to contend that an Investigating Officer is obliged to depose in his evidence, the exact statement made by the Panch Witness and, by merely showing a Discovery Panchnama it cannot be said that the panchnama is proved. According to Shri Dagli, in the facts of the present case, the Investigating Officer, in his evidence has not proved the contents of the discovery panchnama as required under the provisions of section 27 of the Evidence Act. According to Shri Dagli, in the facts of the present case, the Investigating Officer, in his evidence has not proved the contents of the discovery panchnama as required under the provisions of section 27 of the Evidence Act. The Investigating Officer has not brought out the exact statements of the panch witnesses and therefore no reliance can be placed on the testimony of the Investigating Officer. 11. Mr. Dagli, learned counsel for the appellant has, in support of his submissions, relied on a decision of this Court in the case of Nilesh @ Nilesh Navinchandra Mehta Vs. State of Gujarat, 2013 (1) GCD 2. Inviting the attention of the court to the facts of the case, it was sought to be canvassed that, in the facts of that case the Court had, on appreciation of the evidence, held that the test identification parade, cannot be used to frame the accused, when, it was clear from the evidence on record that the accused was known to the seller Satyendrasinh before the test identification parade as they were in custody together. Moreover support of this judgment is taken to contend that only by pressing into service the evidence of recovery of mobile from Satyendrasinh and merely because the same belonged to the deceased, in absence of any further corroboration, no link in the chain to implicate the appellant of the murder of the deceased was established. 12. Ms. Nisha Thakore, learned Additional Public Prosecutor has supported the judgment of the trial court and submitted that the evidence on record, though circumstantial unerringly leads to a conclusion that the appellant-accused is guilty of the offence under section 302 and section 201, IPC read with section 135(1) of the Gujarat Police Act. According to her, the chain of evidences is so complete that the only possible inference is, that the appellant is guilty of the alleged offences. 13. Ms. Thakore, has extensively relied on the testimonies of the complainant Jentilal Premjibhai Tank, P.W. 16, Exh. 35, Satyendrasinh Shriramshankar Tomar, P.W. 17, Exh. 36, and Bhavin Rameshbhai P.W. 14, Exh. 28, to support her case. According to Ms. 13. Ms. Thakore, has extensively relied on the testimonies of the complainant Jentilal Premjibhai Tank, P.W. 16, Exh. 35, Satyendrasinh Shriramshankar Tomar, P.W. 17, Exh. 36, and Bhavin Rameshbhai P.W. 14, Exh. 28, to support her case. According to Ms. Thakore, it is established beyond any doubt that, the mobile phone which belonged to Jentilal, the complainant and which was in possession of deceased on the date of the incident was subsequently recovered from Satyendrasinh who, in the test identification parade identified the accused as the seller, which completes the chain and, therefore, the only hypothesis is that it is the accused alone who is guilty of the offence under sections 302 and 201, IPC. The chain of events, according to Ms. Thakore, is so complete that the only inference that can be drawn is the inference of guilt of the accused. 14. Ms. Thakore, learned Additional Public Prosecutor has also taken us through the deposition of Shri Rajesh Rameschandra Solanki, the Investigating Officer, P.W. 21 at Exh. 68. According to Ms. Thakore, from the testimony of Shri Solanki, it is borne out that, on the basis of the details available from the absconder's list, it was found that the mobile of the deceased, was found to have been activated at Dwarka and based on this information, the Investigating Officer went to Dwarka, confronted Satyendrasinh, who admitted of having a made a call from the said mobile which was sold to him by an individual whom he identifies in the test identification parade. According to Ms. Thakore, the Investigating Officer further testifies that the accused when taken in custody, confirms of selling the mobile to someone in Dwarka. Satyendrasinh in the test identification parade identifies the accused as the individual who sold him the phone. According to Ms. Nisha Thakore, learned Additional Public Prosecutor, though the panchas of the discovery panchnama have turned hostile, the same can be said to have been proved through the testimony of the Investigating Officer. The deposition of the complainant is read over to contend that when the Public Prosecutor showed the articles i.e. the cash, ration card, PAN card and the muddamal mobile to the complainant, he identified the same as having been discovered and recovered, respectively and proved through discovery and recovery panchnama and found from the field and from the individual who was brought to him by the police. The testimony of Bhavin Rameshbhai, who carried out the T.I. Parade and drew the panchnama of the T.I. Parade, Exh. 32 are pressed into service to contend that once Satyendrasinh had identified the accused in the parade so carried out, in light of other substantial evidence, the same was corroborative enough to complete the link in the chain and, therefore, it is proved beyond any doubt that there are cogent circumstances linking the accused, based on the testimonies, as referred to above, to arrive at an inescapable conclusion and inference that it is the accused who has committed the offence under section 302, IPC. Based on the testimonies of the witnesses it was established that the mobile used by the deceased, was found from Satyendrasinh, who had identified the accused as the person who had sold it and therefore the accused was rightly implicated and convicted for the offences under sections 302 and 201, IPC. 15. In support of her submissions, Ms. Thakore, learned Additional Public Prosecutor has sought to place reliance on the decision of Daya Singh Vs. State of Haryana, 2001 (3) JT 16 , to contend that the exercise of undertaking a test identification parade is a safe rule, as the purpose thereof is to test the evidence of the witness in the court so as to identify the accused. In facts of the present case, according to Ms. Thakore, the exercise of carrying out the test identification parade cannot be held to be an exercise in futility, as the exercise has been undertaken to confirm the identity of the accused and further confirms the fact that the investigation has gone in the right direction. 16. Ms. Thakore, in answer to the contention of Mr. Dagli that, in view of the panchas of the Discovery Panchnama turning hostile, the testimony of the Investigating Officer cannot be relied upon to prove the Discovery Panchnama, has relied on the decision of Supreme Court in the case of Munish Mubar Vs. State of Haryana, AIR 2013 SC 912 . Ms. Thakore, in answer to the contention of Mr. Dagli that, in view of the panchas of the Discovery Panchnama turning hostile, the testimony of the Investigating Officer cannot be relied upon to prove the Discovery Panchnama, has relied on the decision of Supreme Court in the case of Munish Mubar Vs. State of Haryana, AIR 2013 SC 912 . On the basis of the said decision, she contends that the deposition of the Investigating Officer ought to be believed and merely because he has not exactly stated or brought on record the exact description of the discovered items or has made out a strict compliance in terms of section 27 of the Evidence Act, no fault can be found with the deposition of the Investigating Officer. In the submission of Ms. Thakore the court cannot start with the presumption that the police records are untrustworthy. She submits that it has to be presumed that the official acts of the police have been regularly performed and thus when the police officer gives evidence in court that a certain article has been recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version of the police officer to be correct if it is not otherwise shown to be unreliable. 17. According to Ms. Thakore, the trial court was right in invoking the provision of section 106 of the Evidence Act and draw an adverse inference vis-a-vis the accused. The case, though based on circumstantial evidence was fool-proof, in as much as based on the call records, and the testimonies of the witnesses and documentary evidence on record there was a complete chain and the only conclusion that was possible was that the crime was committed by the appellant-accused and therefore the conviction recorded by the trial court cannot be faulted. 18. At the outset it needs to be reiterated that it is a settled legal principle that the conviction of a person accused of committing an offence is generally based solely on evidence that is either oral or documentary, but in exceptional cases, such conviction may be based solely on circumstantial evidence. For this to happen, the prosecution must establish its case beyond reasonable doubt and cannot derive any strength from the weaknesses in the defence put by the accused. For this to happen, the prosecution must establish its case beyond reasonable doubt and cannot derive any strength from the weaknesses in the defence put by the accused. The circumstances on the basis of which conclusion of guilt is to be drawn must be fully established. The same must be of a conclusive nature, and must exclude all hypothesis except the one proved. 19. One of the earliest decisions on the subject of circumstantial evidence of the Supreme Court is in the case of Hanumant Govind Nargundkar Vs. State of M.P., AIR 1952 SC 343 . In the said judgment, the Supreme Court has observed as under: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 19.1. In the case of Sharad Birdichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 , it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: "(1) the circumstances, from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of conclusive nature and tendency. The circumstances concerned must or should and not may be established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 19.2. In the case of Padala Veera Reddy Vs. State of A.P., (1989) Supp (2) SCC 706, the Supreme Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be firmly and cogently established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 19.3. In the case of State of U.P. Vs. Ashok Kumar Srivastava, (1992) 2 SCC 86 , it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonable capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must have been found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 19.4. In Ramareddy Rajesh Khanna Reddy and Another Vs. It was also pointed out that the circumstances relied upon must have been found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 19.4. In Ramareddy Rajesh Khanna Reddy and Another Vs. State of A.P., (2006) 10 SCC 172 , the Supreme Court while reiterating the settled legal position, observed: "It is now well settled that with a view to base conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence." 19.5. In the decision in the case of Munish Mubar Vs. State of Haryana, AIR 2013 SC 912 , the Supreme Court, in Para 20, has observed as under: "Undoubtedly, in a case of circumstantial evidence, all the circumstances must be fully established and all the facts so established, must be consistent with the hypothesis regarding the guilt of the accused. The circumstances so established, should exclude every other possible hypothesis except the one sought to be proved. The circumstances must be conclusive in nature. Circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one, indicating the guilt of the accused." 19.6. In the case of Vijay Shankar Vs. Circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one, indicating the guilt of the accused." 19.6. In the case of Vijay Shankar Vs. State of Haryana, (2016) 1 SCC (Cri) 151, which has been relied upon by Shri Dagli it has been held that: "8...The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of guilt of the accused and inconsistent with their innocence." 20. The case on hand being a case based on circumstantial evidence, keeping in mind these principles of law enunciated by the Supreme Court, the evidence which has come on record of the trial court needs to be appreciated in order to come to a conclusion, whether or not the appellant-accused can be held guilty of the offences with which he was charged. 21. The trial court, in coming to the conclusion of holding the accused guilty of the offences under sections 302 and 201, IPC, has extensively referred to the testimonies and documentary evidences. It will be in the fitness of things to refer to the testimonies the complainant Jentilal Premjibhai Tank, P.W.16, at Exh. 35, Satyendrasinh Shriramshankar Tomar, P.W. 17 at Exh. 36 and Bhavin Rameshbhai P.W. 14 at Exh. 28, Panch Witness Suresh Prafulpuri Goswami, P.W. 15 at Exh. 31, PSI Rajesh Rameshchandra Solanki, the Investigating Officer, P.W.21 at Exh.68, Panchnama of the test identification parade at Exh.32 and the Discovery Panchnama Exh.77. 22. Jentilal Premjibhai Tank, is the father of the deceased and is the complainant who is examined at P.W. 16 at Exh. 35. In his deposition, Jentilal has stated that he has 40 bighas of land situated on the road to Village Roziya. 22. Jentilal Premjibhai Tank, is the father of the deceased and is the complainant who is examined at P.W. 16 at Exh. 35. In his deposition, Jentilal has stated that he has 40 bighas of land situated on the road to Village Roziya. That, as "gadab" was cultivated in the seven kyaras/rows which was fodder for the animals on his land, on the date of the incident, his son Rajesh had left home for the farm, at 8:00 p.m. That, he i.e. the complainant, went to the field on the next day in the morning at 6:00 a.m. to cultivate his land. He further stated that his son Rajesh was sleeping on the cot and, he thought it fit not to disturb him, and therefore after attending to his cattle, he went to wake up Rajesh when he saw Rajesh's face covered in blood and his right ear was cut at the centre and due to the blow sustained as a result of such injury, he was dead. In his deposition, the complainant further states that he went to the village and called his cousin Hasmukhbhai Khimji and his elder son Suresh from Moti Balugar and thereafter all went back to the farm and thereafter Suresh informed the police at Jamnagar. A complaint was lodged that an unidentified person had inflicted injury with sharp weapon and caused the death of his son. In his deposition Jentibhai Tank has further deposed that after the inquest panchnama was drawn, the police once again came with a person and asked him whether he knew the person, to which he answered in the negative. He further stated that on the day previous to the date of incident his son had carried the mobile with him and gone on a bicycle. The mobile was black in colour and he had given the mobile number to the police. The police thereafter asked questions and brought before him the person from whom his son's mobile was found. It is his further statement that if he is shown his son's mobile he will be able to identify the same. 22.1. During the course of his cross examination, the witness was shown the muddamal mobile-article 9 which he identifies as the same mobile which was with his son. It is his further statement that if he is shown his son's mobile he will be able to identify the same. 22.1. During the course of his cross examination, the witness was shown the muddamal mobile-article 9 which he identifies as the same mobile which was with his son. He further identifies article 1 to 8 shown to him which the police have taken possession of and states that they are the same articles which were seized from the farm. He also identifies the iron pipe shown to him. In his cross examination he states that he can identify the person whom the police had brought as the person from whom the mobile phone was recovered and identifies the person sitting in court. In his cross examination it has come out that he has not seen the incident and that he is illiterate and cannot say as to what is the make and model of the mobile phone. In his cross examination he further states that he had seen the mobile phone approximately ten days after the incident and denies the fact that he was not aware of the fact as to which whom or whose mobile phone it was, and voluntarily states that the mobile phone belonged to his son Rajesh. He states that his son had bought the mobile phone in his (father's) name and he wasn't aware of other details. He further states that he has never used the mobile. He denies that he is wrong in identifying the mobile phone or that no person was brought to him since the accused is the only person sitting in the box, he is identifying him as the accused that the police brought to him. 23. Satyendrasinh Shriramshankar Tomar is examined as P.W. 17 at Exh. 36. In his examination-in-chief, he states that he and his elder brother Jitendrasinh are for the past one and half year running a Chaat Centre/Stall in the name of Murlidhar Chaat Centre in Dwarka, near Gomtighat Reliance Parking. That he stays in a rented accommodation and his mother, sister and younger brother stay in his home town Devkheda, Taluka Rajkheda, District Dholpul, Rajasthan. That on 29/5/2012 the police had come inquiring from him regarding a mobile phone. The police had asked him as to from where and how he came in possession of the mobile phone. That he stays in a rented accommodation and his mother, sister and younger brother stay in his home town Devkheda, Taluka Rajkheda, District Dholpul, Rajasthan. That on 29/5/2012 the police had come inquiring from him regarding a mobile phone. The police had asked him as to from where and how he came in possession of the mobile phone. Satyendrasinh states that one person had come for refreshments at his stall and as that person had no money he wanted to sell the mobile phone which he had, for Rs. 700/-. Satyendrasinh, in his deposition further stated that he had shown the mobile phone to his brother and told the person that he could buy the mobile phone if he sold it for Rs. 300/-. The person, on being so told left, and then returned after ten to fifteen minutes and agreed to sell it for Rs. 300/- and so he paid the money and bought the same. He has further stated that after purchasing the mobile phone, he inserted his sim card (No. 9558364010) in the said mobile phone and talked to his mother Narandeo. The sim card was in his mobile phone Nokia C-Z which he was using and he removed the card and installed it in the mobile phone purchased by him, which was Nokia 1650, black coloured. The person who came to sell the mobile phone was approximately 35 years of age and thin built. The mobile phone was thereafter taken away by the police. In his testimony this witness further states that he and his brother thereafter accompanied the police in Dwarka at Dwarka Mandir and Dhobi Ghat etc. but could not find the seller of the mobile phone. The police, according to this witness, called him for identifying this person and he identified him during the process of identification wherein five to seven persons were standing. Satyendrasinh further deposed that when he went for the identification parade his brother had also accompanied him and there were about seven to eight persons. The person who had come to sell the mobile phone spoke in Gujarati. He further stated that if the mobile phone is shown to him he can identify the same. Satyendrasinh further deposed that when he went for the identification parade his brother had also accompanied him and there were about seven to eight persons. The person who had come to sell the mobile phone spoke in Gujarati. He further stated that if the mobile phone is shown to him he can identify the same. The witness Satyendrasinh, on being shown the muddamal mobile phone, says that it is the same mobile phone that was sold to him and he also identifies the person in court from whom the mobile phone was purchased. 23.1. In his cross-examination, the witness Satyendrasinh states that the police, for the first time, came two days after he had purchased the mobile phone. The witness further reiterates that he used the sim card on the mobile phone only once for calling up his mother and thereafter he put the sim card back in his old phone and never again used the muddamal phone. The witness further deposes that call details were procured for the mobile phone and given to the police on the day when they came. The police inquired from all the hawkers around. The police did not give any description of the person and the police questioned him on how the mobile phone came in his possession. The police did not inform him the details of the phone but gave him details of the model number and mobile phone number. He denies that he could identify the mobile phone as only one mobile phone was shown to him in court, which was given to him by one person. Satyendrasinh in his cross, further states that the police had brought him to Jamnagar for recording his statement, on the day they came to question him. That he and his brother were kept at the Jamnagar Police Station for three/four days. The witness admits that during this entire period in custody the accused was also with him. He further denies that he identifies the person because he is the only person sitting in the court. He further denies the suggestion that he was prompted by the police to identify the person. He further denies that he had not purchased the mobile phone at all and that he is seeing the person for the first time. He denies that since he has come with the complainant, he is giving the deposition according to his instructions. 24. He further denies the suggestion that he was prompted by the police to identify the person. He further denies that he had not purchased the mobile phone at all and that he is seeing the person for the first time. He denies that since he has come with the complainant, he is giving the deposition according to his instructions. 24. Bhavin Rameshbhai, the Mamlatdar, who carried out the test identification parade is examined as P.W. 14 at Exh. 28. In his examination-in-chief he states that he received a Yadi on 5/6/2012 at 18:15 from the Panchkoshi Police Station to carry out an identification parade. Accordingly he informed the police to keep the persons present on 7/6/2012. As directed orally, on 7/6/2012 at 5:20 p.m. Satyendrasinh Ramshanker Tomar, Jitendrasinh Ramshanker Tomar and panch Sureshpuri Goswami and Prakash Hiralal Sodha were called. This was done after verification that they were in no way connected with the accused. Jagdishsinh @ Jago @ Munno S/o. Ranjitsinh Jadeja, residing at Nani Lakhani was produced before him and his face was covered. After verifying his name and address he was asked to sit in the Mid-day meal room. Thereafter witnesses No. 1 and 2 remained present and they were asked to sit in the land branch so that they cannot see the accused. Five persons were asked to stand in line and then the accused was called and he was asked whether he wanted to change his clothes or appearance to which he refused. The accused was asked to stand in line at position No. 4 and the peon then called the witnesses and asked to bring out the person identified by holding his right hand. The witness identified the accused and the second witness was also explained and he too identified the accused. Hamidaben was writing the panchnama and after the parade the witnesses were allowed to leave. 24.1. In his cross-examination, Bhavin Rameshbhai deposes that it is true that no time was mentioned in the panchnama as to when the witnesses were made to sit in the land department as the panchnama has been subsequently made. He further states that it is true that in the entire exercise of making the panchnama, there is no endorsement by the witnesses to show that they were present. He further states that it is true that in the entire exercise of making the panchnama, there is no endorsement by the witnesses to show that they were present. In his cross-examination, Bhavin Rameshbhai says that it is true that it has not happened that during the process of the test identification parade the accused had informed him that both the witnesses were with the accused for the last one week at the police station and no endorsement was made to that effect. It is denied that the panchnama was prepared without carrying out the parade and signatures of the panchas were subsequently obtained. He further denies the fact that the identification parade was not carried out in his presence and that no person was identified. 25. The panchnama, Exh. 32, of the test identification parade is proved through the deposition of panch witness Suresh Prafulpuri Goswami who is examined as P.W. 15 at Exh. 31. Suresh Prafulpuri Goswami in his deposition states, amongst other things that the accused was made to stand approximately at position number three. The Mamlatdar thereafter instructed the witness to carry out the identification and accordingly the accused was identified by first witness by pulling him out of the line and thereafter the second witness was called but he could not identify anybody. The exercise of test identification parade lasted for approximately one to one and a half hour and the panchnama was written down in his presence. In his cross-examination the pancha has deposed that both he and the other pancha were called at 12:00/12:30 and both of them reached together. The witnesses were already present then. He denies that the accused was not identified during in line-up. 26. The panchnama Exh. 32, needs to be referred to. It categorically refers to a fact that, when the exercise was carried out, and the accused was asked to switch places and appearance, the accused categorically stated that the accused was with him at the police station for the last three weeks and knows him and therefore he does not want to change his appearance or switch places. 27. The Investigating Officer, Rajesh Rameshchandra Solanki is examined as P.W. 21 at Exh. 68. In his examination-in-chief he states that on 25/5/2012 and 26/5/2012 on being informed of the incident, he visited Jamvanthali with his men and recorded the complaint and made the necessary inquest panchnama etc. 27. The Investigating Officer, Rajesh Rameshchandra Solanki is examined as P.W. 21 at Exh. 68. In his examination-in-chief he states that on 25/5/2012 and 26/5/2012 on being informed of the incident, he visited Jamvanthali with his men and recorded the complaint and made the necessary inquest panchnama etc. He further deposes that he carried out further investigation after obtaining the mobile phone number of the deceased and that with a view to obtain call details of the deceased a yadi of numbers was sent to the absconder's squad for obtaining call details of the deceased. That informants were kept in and around Jamvanthali and had taken statements of labourers in the vicinity. It is the further say of this witness that on the deceased's mobile phone number being activated, and on receiving such information from the absconder's squad, he proceeded to Dwarka and went to the person who had activated the mobile phone. After some questioning the person was brought to the police station and he had taken relevant statements regarding the details of the physical appearance of the person who gave the mobile phone. Thereafter being informed by his informants that Jagdishsinh, who was in the nearby village, was on the run for the last few days and was missing, hence Jagdishsinh was called to the police station and on being questioned informed that he had gone to Dwarka and had sold the mobile phone to a person there. Thereafter the officer further states that a yadi was sent to the Mamlatdar to carry out a test identification parade and since sufficient evidence was found against the accused he was arrested. Shri Rajesh Rameshchandra Solanki further deposes that on remand and further questioning, the accused agreed to accompany the police and had shown the scene of offence and the mobile phone panchnama was drawn in presence of panchas. On being questioned regarding the clothes which the accused had worn on the day of the incident, the accused called for his clothes from his brother which were sent to FSL Rajkot. The Investigating Officer in his deposition only admits the panchnamas Exhs. 70, 71, 72, 73 and the mobile phone panchnama at Exh. 74 and arrest panchnama at Exh. 75 were duly prepared by the Panchas and signed by them. 27.1. The Investigating Officer in his deposition only admits the panchnamas Exhs. 70, 71, 72, 73 and the mobile phone panchnama at Exh. 74 and arrest panchnama at Exh. 75 were duly prepared by the Panchas and signed by them. 27.1. In his cross-examination, the Investigating Officer admits that he has not taken statements of any officer of any cellular phone company before 31/5/2012 nor has he obtained any records of the company. He further admits that during the entire investigation he has not recorded statements of any cellphone company's officer nor has he taken possession of any records from such officer. He further admits that the authentic information of the use of the mobile phone can be obtained from the cellphone company and the entire details, that on whose name is the sim card in and on what basis and documents the sim card is allotted can only be made available from the cellphone company. He further admits that he has not carried out any investigation with regard to the muddamal cellphone, in terms of the company of the sim card and the basis of its allotment. He states that the reason for not making such inquiries is that such information can be obtained regarding IMEI number and sim card from the absconder's squad which is an electronic cell. He further admits that he has not taken steps to find out that the muddamal mobile phone was used by any person other than the owner or that the sim card was used by someone else, has not been investigated from any cellphone company. The Investigating Officer states that the fact that the another sim card was used at Dwarka from the muddamal mobile phone came to light during the investigation. No investigation in regard to the sim card was made from the company. That he cannot say without verification of records whether the sim card used at Dwarka was of Jitendrasinh Tomar. The Investigating Officer states that he saw the muddamal mobile phone for the first time on 31/5/2012 with Satyendrasinh of Dwarka. He states that in order see that the phone is not used again and is to be taken as part of the investigation, it has to be packed and sealed. The Investigating Officer states that he saw the muddamal mobile phone for the first time on 31/5/2012 with Satyendrasinh of Dwarka. He states that in order see that the phone is not used again and is to be taken as part of the investigation, it has to be packed and sealed. The muddamal mobile phone, article 9 was not sent for reexamination to the FSL He states that he does not recollect as to whether the statement of the person from whom the mobile phone was recovered was taken at Dwarka or Jamnagar. He then states that both Satyendrasinh and Jitendrasinh were brought to Jamnagar. He denies that they along with other four or five persons were made to sit in the police station on 26/6/2012 (26/5/2012) and false evidence was created. He denies that he had knowledge of the fact that the accused had complained to the Mamlatdar that they were confined to the police station a week before the identification parade. 28. In so far as the death of the deceased being homicidal is concerned, there is no dispute. It has not even been suggested that this is a case of any accident or suicide. Therefore, what is required to be examined is as to whether the prosecution has adduced sufficient evidence to bring home the charge against the accused. The culpability or otherwise of the accused person is required to be examined in the light of the evidence which has come on record. 29. On the perusal of the testimony of the complainant Jentilal Premjibhai Tank, P.W. 16, what comes forth is that according to this witness, on the date of the incident i.e. between 20:00 hours of 25/5/2012 and 6:30 a.m. of 26/5/2012, Rajesh, when he went to the field, was carrying a mobile phone. From the testimony of Hathabhai Khengarbhai, P.W. 20, Exh. 48, it appears that on 25/5/2012 Rajesh called him up from his mobile phone on 25/5/2012 at 8:00 to 8:30 p.m. (No call records are however produced to substantiate this fact). 30. From the testimony of Satyendrasinh Ramshankar Tomar, it emerges that a mobile phone was sold to him on 27/5/2012, for an amount of Rs. 300/- by a Gujarati speaking individual who came to the chaat stall, namely Murlidhar Chaat at Dwarka near Reliance parking. 30. From the testimony of Satyendrasinh Ramshankar Tomar, it emerges that a mobile phone was sold to him on 27/5/2012, for an amount of Rs. 300/- by a Gujarati speaking individual who came to the chaat stall, namely Murlidhar Chaat at Dwarka near Reliance parking. From the evidence of Satyendrasinh Ramshankar Tomar, P.W. 17, it further emerges that on 29/5/2012, two days after the phone was sold to him, and on the day he activated his sim card from the instrument, the police came inquiring about the phone and questioned him on how he got possession of the phone, to which this witness stated that it was sold at Rs. 300/- by a person whose identity he could not recall. Both Satyendrasinh and Jitendrasinh accompanied the Investigating Officer at Dwarka Mandir and Gomtighat to look for the accused but could not find him. In his cross examination this witness categorically admits that he was in custody in Jamnagar for three to four days with the accused. 31. The Investigating Officer Shri Solanki, in his deposition at Exh. 68 stated that the mobile phone number and IMEI number of the deceased's mobile phone was given to the absconders' cell, an Electronic Surveillance Wing, and as soon as information of its activation was received, based on such information he went to Dwarka and confronted Satyendrasinh Tomar. The mobile phone was seized from Satyendrasinh. The Investigating Officer further deposed that on the basis of the information received from his informants, the accused Jagdish who was on the run, was traced and on the basis of "sufficient available evidence" arrested. In his testimony, the Investigating Officer has further stated that both Satyendrasinh and Jitendrasinh were brought to Jamnagar and were detained. 32. Bhavin Rameshbhai is the Mamlatdar who conducted the T.I. parade and drew the panchnama of the T.I. parade. Though this witness has deposed that the panchnama was written by his Deputy Mamlatdar, Hamidaben, as per instructions stated by the panchas, in his cross examination, he has stated that it has not happened that during the course of the proceedings, the accused had told him that he and both witnesses were together in the police station since the last week, which is contrary to the facts recorded in the T.I. Parade panchnama, Exhibit 32. Therefore this witness does not support the contents of the panchnama that has been drawn by him which dents his credibility. 33. For the reasons that follow, the testimonies of Stayendrasinh Tomar, Rajeshkumar-the Investigating Officer and Bhavin Ramesh-Mamlatdar do not inspire confidence and cannot be reliable and trustworthy. (1) Satyendrasinh Tomar, does not describe the appearance of the accused, to the police, when questioned on 29/5/2012, regarding the identity of the person from whom he purchased the mobile phone. (2) Satyendrasinh Tomar, in his cross examination has admitted that he was in custody with the accused for three four days, despite which at the first opportunity he does not identify him as the person from whom he had purchased the mobile phone, but thereafter identifies him in test identification parade. If the witness had actually purchased the mobile from the accused, he would have immediately identified him the moment he was in custody along with him. The fact that he did not identify him earlier, shakes the credibility of this witness and a conviction cannot be based on the testimony of such a witness. (3) Similarly the testimony of Bhavin Rameshbhai does not inspire confidence for the reason that though the T.I. Parade panchnama has been drawn by him, in his cross-examination, he has deposed contrary to what is stated in the panchnama, viz., that the accused had told him that he and both the witnesses were together in the police station since the last week. (4) The testimony of the Investigating Officer, Shri Rajesh Solanki also does not appear to be credible inasmuch as he sought to suppress the fact that the witness Satyendrasinh and his brother Jitendrasinh had been brought to Jamnagar from Dwarka. Despite the fact that the accused and the two witnesses were kept in custody together, the Investigating Officer has arranged for a test identification parade wherein, two witnesses have identified the appellant-accused. Despite the fact that the accused and the two witnesses were kept in custody together, the Investigating Officer has arranged for a test identification parade wherein, two witnesses have identified the appellant-accused. Besides, the said witness in his testimony has stated that upon taking the accused in remand, he was interrogated with regard to the purse and mobile from pocket of the deceased and he had shown his consent to show the scene of offence and hence, the panchas were kept present and a preliminary panchnama was drawn and the accused being willing to show the scene of offence, they had boarded a government vehicle and had gone to the place as shown by the accused and drawn the panchnama in the presence of two panchas. Therefore, in the testimony of the said witness nothing has been stated that the discovery of any articles had been made from the scene of the offence at the instance of the accused. Therefore, the discovery panchnama stated to have been made under Section 27 of the Evidence Act has not been proved either through the testimony of the Investigating Officer, nor is the same supported by panchas and hence, in the absence of the contents of the panchnama being proved, no reliance can be placed thereon. (5) It appears that the entire exercise of carrying out the test identification parade was a facade, viewed in light of the fact that the accused and Satyendrasinh were in custody together, at least for a few days. Satyendrasinh could have identified him immediately, the day i.e. on 29/5/2012, when taken to Jamnagar Police Station. No reliance can be placed on the testimony of Satyendrasinh, to prove that the mobile phone, in question, was purchased from the accused, merely because, the accused was identified by him subsequently (though he knew of the accused's identity) under a facade of a T.I. Parade. 34. As held by the Supreme Court in the case of R. Shaji Vs. State of Kerala (supra) conducting a test identification parade is of no significance if the witnesses were acquainted with the accused. Further similarly also in the case of Vijayan Vs. State of Kerala (supra) the Supreme Court on facts found that since the photographs were already published in the newspaper, the test identification parade was nothing but a farce. State of Kerala (supra) conducting a test identification parade is of no significance if the witnesses were acquainted with the accused. Further similarly also in the case of Vijayan Vs. State of Kerala (supra) the Supreme Court on facts found that since the photographs were already published in the newspaper, the test identification parade was nothing but a farce. Both these judgments of the Supreme Court when applied to the facts of this case would show that, when Satyendrasinh had categorically admitted of the fact of being in custody with the accused and the panchnama recording the statement of fact that the accused was with the brothers in custody for days before the parade and therefore could even otherwise identify him, lead us to believe that in the present case also the test identification parade was a mere facade and a farce and therefore in light of the testimonies of Satyendrasinh and Bhavin Ramesh whose credibility as witnesses is itself under question, cannot but lead us only to one conclusion that the evidence brought forth cannot in any manner lead to a conclusion of holding the accused guilty. 35. Emphasis laid by the learned Additional Public Prosecutor Ms. Nisha Thakore, on the panchnamas, namely the recovery panchnama and the discovery panchnama particularly the latter having been proved through the deposition of the Investigating Officer, cannot be accepted. The contents of the panchnama cannot be read as substantive piece of evidence. The evidence as to discovery may not be rejected, on the ground that witnesses have not supported the panchnama, however the evidence of the Investigating Officer who recovered the material objects has to be convincing. The requirement of law needs to be fulfilled before accepting the discovery and that is by proving the contents of the panchnama. The Investigating Officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law then in that case the prosecution may be justified in relying on such evidence. The Investigating Officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law then in that case the prosecution may be justified in relying on such evidence. It is well settled that before relying on the evidence of the discovery under section 27 of the Indian Evidence Act, 1872, the exact statement attributed to the accused, as statement made by him, be brought on record and, for this purpose, the panch witness and the Investigating Officer are obliged to depose in their evidence the exact statement and not by merely showing that the discovery of the material objects was drawn as the accused was willing to point out the place of concealment. It will be relevant to reproduce the law as enunciated by the Supreme Court in context of section 27 of the Indian Evidence Act, 1872. In the case of State of Maharashtra Vs. Damu S/o. Gopinath Shinde and others, the Supreme Court has held thus: "35. The basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect." In the case of Bodhraj alias Bodha and others Vs. State of Jammu and Kashmir, (2002) 8 SCC 45 , the Supreme Court has observed as under: "18. State of Jammu and Kashmir, (2002) 8 SCC 45 , the Supreme Court has observed as under: "18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short "the Evidence Act") is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Bal Krishan. AIR (1972) SC 3 and Md. Inayatullah v. State of Maharashtra. AIR (1976) SC 483. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did come from a person not in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any Information obtained from a prisoner, such a discovery is a guarantee that the Information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kotayya v. Emperor AIR (1947) PC 67, is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Damu Gopinath Shinde and Ors., (2000) Cri.L.J. 2301. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered.'' But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." In the case on hand, the recovery panchnama at best can prove the fact that the mobile phone was recovered from Satyendrasinh. The Discovery Panchnama has not been proved by the Investigating Officer as he has merely shown that the panchnama is drawn. In absence of any other evidence, substantive in nature, reliance on such evidence cannot implicate the accused. As held by this Court, in the case of Patel Manabhai Mavjibhai Vs. State of Gujarat (supra), mere recovery of an object at the instance of the accused is a relevant fact only when it is established by other evidence and that the object recovered is connected with the accused and the offence with which he is charged. To put it plainly, the connection between the object recovered, the accused and the offence with which the accused is charged must always be established by "evidence aliunde". In the facts of the present case no substantive evidence has come on record and merely because the mobile phone is recovered from Satyendrasinh such recovery cannot be connected to charge the accused of an offence under sections 302 and 201, IPC. FINAL CONCLUSION: 36. In the facts of the present case no substantive evidence has come on record and merely because the mobile phone is recovered from Satyendrasinh such recovery cannot be connected to charge the accused of an offence under sections 302 and 201, IPC. FINAL CONCLUSION: 36. In view of what has been discussed above it needs to be reiterated that, as noted earlier, this is a case of circumstantial evidence, and in absence of any eyewitness who has seen the offence being committed except the case of the prosecution, that the deceased was carrying a mobile phone bearing the number which was registered in the name of the father and that they had traced it to the witness Satyendrasinh there is no evidence to link the accused. The evidence of Satyendrasinh shows that at the relevant point of time he did not give any description of the person who had sold him the mobile phone. Except a bare assertion nothing has been shown by way of evidence on record to show that the phone was in fact purchased by Satyendrasinh from the appellant. The testimony of Satyendrasinh further shows that the said witness and the brother were kept in the lock up for three days with the appellant. In the opinion of this court, if it was the appellant from whom the witness had purchased the phone he would have disclosed the same the moment the appellant was put in the lock up with him and could have secured his release from the lock up. He, however, did not do so. After the appellant remained with the witness for about three days, a test identification parade came to be carried out, where the witness identified the appellant as the person from whom the phone was purchased. Having regard to the facts noted hereinabove, it is evident that the test identification parade is nothing but a charade, organised with a view to implicate the appellant. A perusal of the panchnama of the T.I. Parade reveals that the Mamlatdar asked the appellant whether he would like to change his clothes and switch places, the appellant stated that it would not serve any purpose as the witness was with him for three days and would recognise him. This fact, as noted earlier is recorded in the panchnama Exh. This fact, as noted earlier is recorded in the panchnama Exh. 32, however the Mamlatdar who carried out the T.I. Parade has denied that the appellant has stated any such thing. This clearly shows that the testimony of the Mamlatdar is not trustworthy in as much as he has deposed contrary to the contents of the panchnama of the T.I. Parade. The trial court, unfortunately has on the basis of the above evidence accepted the prosecution case that the appellant had sold the mobile phone to Satyendra and had placed the burden of explaining this circumstance on the appellant. In the opinion of this court, unless it is established by cogent and convincing evidence that the appellant had in fact sold the phone to the witness the question of explaining such circumstance would not arise. 37. Significantly the only piece of evidence against the appellant is that he is alleged to have sold the phone to Satyendrasinh. On such slender evidence, that too considering the nature of testimonies of the witnesses which are neither credible or trustworthy, the trial court convicted the appellant for the offence under section 302, IPC. Subsequently with a view to corroborate the prosecution a motive is sought to be alleged, without leading any evidence whatsoever to establish such motive. 38. In view of the discussion above, we find that, from the evidence on record, circumstantial evidence, which has a definite tendency unerringly pointing to the guilt of the accused, has not come on record. The circumstances taken cumulatively, do not form a chain so complete that there is no escape from coming to the conclusion that the accused is guilty of an offence under sections 302 and 201, IPC. The conviction of the appellant under sections 302 and 201, IPC, in absence of a complete and inescapable hypothesis to establish the guilt, cannot be sustained. 39. In the result, the appeal succeeds and is accordingly allowed. The impugned judgment and order passed by the learned Sessions Judge, Jamnagar, dated 20.10.2014 in Sessions Case No. 79 of 2012, convicting and sentencing the accused for offences under sections 302, 201, IPC is hereby quashed and set aside. The appellant-accused is ordered to be set free, if not required in any other offence.